dissenting.
I disagree with the majority’s reasoning and judgment for the following reasons.
I.
Lawhorn contends in his first point of error that the trial court erred in overruling his motion for instructed verdict. The motion rested on Lawhom’s claim that the evidence was insufficient to permit a rational jury to find, beyond a reasonable doubt, that he intended to escape when he entered the apartment. The majority have detailed the evidence, and I need not repeat it here. Suffice it to say that the evidence showed that Lawhorn broke free from the deputy sheriff’s detention and fled to an apartment complex a block or so away where he entered an apartment by force. There he was found by pursuing peace officers within a few minutes.
The penal code provides that one “commits an offense if he escapes from custody when he is ... under arrest for, charged with, or convicted of an offense.” Tex.Penal Code Ann. § 38.07(a)(1) (West 1989) (emphasis added). “Custody” means detention under arrest by a peace officer or restraint by a public servant pursuant to a court order. Id. § 38.01(2). “Escape” means an “unauthorized departure from custody or failure to return to custody following temporary leave for a specific purpose or limited period, but does not include a violation of conditions of probation or parole.” Id. § 38.01(3).
The majority opinion sustains Lawhom’s claim that a rational jury could not find the elements of the escape offense beyond a reasonable doubt. The opinion rests on the following rationale:
1. As a matter of law, some form and degree of existing physical restraint is essential before one can be in a “custody” status as contemplated by the escape offense;
2. Lawhorn’s custody status therefore ended, under the undisputed evidence, the moment his flight removed him from the deputy sheriff’s physical restraint;
3. Lawhom’s intent to escape from custody expired at the same moment, as a matter of law, because (a) there no longer existed a “custody” status from which to escape and (b) the legal fiction of a “continuing offense” was unavailable to carry forward his original intent to escape; therefore,
4. No rational jury could have found from the,evidence that Lawhorn had the requisite intent to escape from custody when he entered the apartment.
In my view the applicable law will not sustain such a course of reasoning, which rests ultimately on the false assumption that a prisoner may end his custody status, in the escape context, merely by his unauthorized but successful flight from physical detention.
The general rule is that “custody” encompasses both a person’s legal status and his physical status as a prisoner. The two coincide when an offender is arrested and first becomes a prisoner. At that time, he comes under the legal as well as the physical restraint incident to his arrest. “Custody terminates, i.e., imprisonment ends, when the prisoner is lawfully discharged. The crime of escape ... may be committed at any time during the interval.” 4 Charles E. Torcia, Wharton’s Criminal Law § 670, at 438 (14th ed., 1981) (emphasis added).1
*273The majority deny this general rule. Without citation to authority, they conclude that custody may be terminated in yet another way — by the prisoner’s successful escape from detention in the interval between his arrest and lawful discharge.
It appears to me that the majority reach this extraordinary result based upon a mistaken understanding of decisions that refer to an escape being “completed” or “ended” when a prisoner transgresses a physical barrier or boundary set upon his movements by those having custodial authority over him. See, e.g., Fitzgerald v. State, 782 S.W.2d 876, 880 (Tex.Crim.App.1990) (“[Ajppellant’s unauthorized departure from custody ... ended when he went through a hole cut in the fenced boundary.”); Scott v. State, 672 S.W.2d 465, 466 (Tex.Crim.App.1984) (“Appellant completed the offense of escape when he dug out of the building.”). These statements mean simply that the prisoner had physically accomplished the departure from custody necessary for the escape offense; they do not state or imply that the custody status imposed by law was terminated, just as it would be with the prisoner’s lawful discharge from custody. That is to say, these cases do not imply as much unless one arbitrarily assigns to the word “custody” a single meaning — that “custody” encompasses only the physical restraint that may be associated at the time with the prisoner’s custody status. This is what the majority do,' but there is no authority for it. Indeed the controlling authority is to the contrary.
The court of criminal appeals rejected the majority’s theory in Harrell v. State, 743 S.W.2d 229 (Tex.Crim.App.1987), based on the distinction between a prisoner’s legal status and his physical status as a person in custody. The opinion justifies a brief analysis.
Harrell was indicted for theft, arrested, and jailed. County officials removed him from jail before trial, for illness, and placed him in a public hospital governed by federal regulations. These forbade the guarding of patients. Hospital employees agreed, however, to watch Harrell and report to the county officials if his medical condition changed or he attempted to escape. Harrell fled the hospital to be captured eventually in Florida. He was returned to the county. There he was tried and convicted of escape under section 38.07 of the penal code. Harrell appealed, raising the identical point of error and theory raised by Lawhorn — that the trial court erred in overruling his motion for directed verdict because the undisputed evidence showed he was “not under restraint” and therefore not in a “custody” status when he departed from the hospital. The court of appeals agreed with the theory and reversed the trial-court judgment, rendering judgment dismissing the prosecution. Harrell v. State, 699 S.W.2d 319, 320 (Tex.App. — San Antonio 1985); Harrell, 743 S.W.2d at 230 (“The Court of Appeals, in finding the evidence insufficient to show custody, focused on the fact that appellant was not under any kind of physical restraint while at the V.A. Hospital.”).
The court of criminal appeals reversed the judgment of the court of appeals, holding “that actual, physical ‘hands-on’ restraint is not a prerequisite to a showing of custody in the context of the offense of escape. Rather it is appropriate to look at the legal status of the individual at the time of the escape.” Harrell, 743 S.W.2d at 231 (emphasis added). Equally pertinent *274to the majority’s rationale here is the rationale given by the Harrell court in support of his holding: Harrell remained “under arrest” after his transfer to the hospital, even in the absence of physical restraint, and his custody status continued regardless of his physical location until the theft charges were “finally resolved” or he was released on bond. Id.2
Nothing could be plainer. The word “custody” as used in section 38.07 of the penal code encompasses both the prisoner’s physical status and his legal status. His physical status may change — he may be freed from physical restraint or he may gain complete physical liberty; but this does not terminate his legal status as a person in custody. He remains in that legal status until his lawful discharge, and his legal status may serve as a basis for prosecution and conviction for the escape offense set out in section 38.07 of the penal code.
The majority opinion concedes the holding of Harrell but does not address the precepts upon which it is based: that a prisoner’s unauthorized departure from detention does not terminate his legal status of a person in custody, which status remains as a basis for prosecution and conviction under section 38.07 of the penal code; and custody terminates only with a final resolution of the underlying charges or a release on bond.
What I have said above makes it unnecessary to address at length the third element of the majority’s rationale — their idea that Lawhom’s intent to escape from custody expired, as a matter of law, at the moment his flight placed him beyond the deputy sheriff’s physical restraint. Without this idea, the majority could not hold as they do — that a rational jury could not find from the evidence that Lawhom entered the apartment with a specific intent to escape.
This third element of the majority’s rationale is based first on the assumption that the word “custody” has only one meaning — that it refers exclusively to a prisoner’s physical restraint or limitation. This is erroneous for the reasons given above. I refer particularly to the Harrell decision.
Secondly, the majority base their rationale on the idea that escape is not a continuing offense. I believe this idea to be erroneous as well, but the matter is immaterial in the present case and I will not discuss it.3 It is immaterial because Law-hom was shown by the evidence to have departed from custody only a few minutes before he entered the apartment by force. It cannot be said as a matter of law, given that short interval, that a jury is irrational if it finds Lawhorn entered the apartment with a specific intent to escape from the pursuing officers.4
*275For the reasons given, I would overrule Lawhom’s first point of error.
II.
In his second point of error, Lawhom contends the trial court erroneously refused two specially requested instructions. One would have instructed that the jury “must find that the defendant entered the habitation ... with the intent to commit theft or a felony other than escape before” the jury might find him guilty of burglary, (emphasis added). Lawhom gives no authority for the proposition that a conviction for burglary cannot be based on an unauthorized entry with intent to commit felony escape. Moreover, his requested instruction implicitly authorized his conviction on a theory not alleged in the indictment.
The other requested instruction would have instructed the jury “that the offense of felony escape is not a continuing one, but is complete at the moment of the unauthorized departure from custody after the defendant has been placed under arrest for, charged with, or convicted of a felony offense.” Even if one assumes this was a correct statement of the law, the requested instmction was nevertheless merely a restatement of what the court did instruct the jury — that they could not convict Law-hom of burglary if they found that he had already committed the offense of escape before entering the apartment.
I would, therefore, overrule Lawhorn’s second point of error.
Finding no error, I would affirm the judgment.
. During the interval between arrest and lawful discharge, a prisoner’s legal status as a person *273in custody never changes. His physical status may change, however, even to the extent of physical liberty subject only to incorporeal conditions imposed by his custodian. These conditions may only impose, for example, chronological or geographical limits on the prisoner’s liberty. Wharton’s refers to the prisoner’s status, in such cases, as "constructive custody.” 4 Torcia, supra, at 431. See, e.g., Choice v. State, 819 S.W.2d 864 (Tex.Crim.App.1991) (prisoner authorized to live at home under specified conditions); Martin v. State, 654 S.W.2d 473 (Tex.App. — Waco 1982); rev’d on other grounds, 652 S.W.2d 777 (Tex.Crim.App.1983) (work release); see also Annotation, Failure of Prisoner to Return at Expiration of Work Furlough or Other Permissive Release Period as Crime of Escape, 76 A.L.R.3d 659 (1977); Thomas Trenkner, Annotation, Escape from Public Employee or Institution Other than Correctional or Law Enforcement Employee or Institution as Criminal Offense, 69 A.L.R.3d 625 (1976). If the prisoner breaks a condition of his liberty status, he may be convicted of escape. Id.
. As authority, the Harrell court referred to the statutes dealing with discharge of a prisoner after an acquittal verdict or after serving the period of punishment imposed, Tex.Code Crim. Proc.Ann. art. 37.12 (West 1981), art. 43.13 (West 1979), and to the statutes concerning release on bond, id., arts. 17.21, 17.27, 17.29 (West 1977). When a prisoner is released on bond, he is discharged from the legal status of custody because bail jumping is a separate and independent offense under § 38.11 of the penal code.
. The opinion in Fitzgerald v. State, 782 S.W.2d 876, 881 n. 9 (Tex.Crim.App.1990), does not hold that escape is not a continuing offense. Nor does any other decision so far as I am able to determine. Fitzgerald simply stated in footnote nine that a prisoner’s breaking through a fence "does not extend the criminal episode for purposes of admitting extraneous offenses" in evidence. Fitzgerald, 782 S.W.2d at 881 n. 9 (emphasis added). Ordinarily, of course, the legal fiction of a continuing offense is a device used to avoid the bar of a prior conviction or prior acquittal. Fitzgerald employed the device to bar introduction of evidence of other offenses which the State contended fell within the res gestae of the escape offense. The majority employ the device in a far different manner — to terminate Lawhorn’s legal status as a person in custody. There is no authority for this usage.
. We do not deal here with a case where a long interval came between the prisoner’s successful escape and his entry of an apartment. In such a case, the circumstances surrounding the entry may or may not permit a rational jury to find beyond a reasonable doubt that the accused entered the apartment with an intent to escape. For example, the intent to escape might be more difficult to infer a year after the escape when the evidence shows no more than the entry itself; on the other hand if other evidence shows that the accused reacted to the presence of police officers by making the forced entry, *275then the logical impediment arising from the long lapse of time is discounted a great deal.